ARTICLES HON.DOUGLAS H. GINSBURG* INTRODUCTION... 1 I. CASE STATISTICS... 2 II. EN BANC REHEARINGS... 5 III. OPINIONS AND DISSENTS...

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1 ARTICLES Remarks Upon Receiving the Lifetime Service Award of the Georgetown Federalist Society Chapter Georgetown University Law Center, April 26, 2011 HON.DOUGLAS H. GINSBURG* INTRODUCTION... 1 I. CASE STATISTICS... 2 II. EN BANC REHEARINGS... 5 III. OPINIONS AND DISSENTS... 7 IV. LENGTH OF OPINIONS... 9 CONCLUSION INTRODUCTION Notwithstanding the gentle nudge implied by a Lifetime Service Award, I appreciate the sentiment and am indeed honored to be here, in particular because of the people who have received this recognition before, including my teachers, Richard Epstein and Richard Posner, my former boss and booster Edwin Meese, my colleague Larry Silberman and former colleague Ken Starr, and my friend, Ted Olson. These are hard acts to follow. When Sam Sharp, President of the Georgetown Federalist Society chapter, asked what to say on the posters publicizing this speech, I told him to entitle it The Accidental Lifetime Servant. I did so because when I came to Washington I took a one-year leave of absence from teaching at Harvard Law School, then extended that by another year, fully intending to return before my leave was up. When those two years were nearly passed, however, Attorney General Meese asked me to be Assistant Attorney General for the Antitrust Division. When my wife, having considered the consequences, asked me whether I could get Harvard to extend my leave, I said, Well, Henry Kissinger didn t get an * Judge, United States Court of Appeals for the District of Columbia Circuit. 2012, Douglas H. Ginsburg. 1

2 2 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 10:1 extension and Senator Moynihan didn t get an extension, so I don t think I ll ask. Then, before another year was out, the Attorney General offered me a plea bargain with a lifetime sentence, which is why I am still here in Washington instead of teaching law. Having come to town for what I thought would be one year and then two, it has been twenty-eight, of which, come November, twenty-five will have been as a judge on the D.C. Circuit. Because my service has been principally, if only accidentally, on the court, I will take this opportunity to tell you a bit about the institution. In particular, I shall look back at how things have changed over the last twenty-five years, taking refuge, as usual on such occasions, in numbers. I. CASE STATISTICS The number of cases filed in the D.C. Circuit has declined more or less continuously over the last twenty-five years. 1 More surprising, the number of administrative law cases filed in our court also has declined over that period, again consistently, and the percentage of administrative law cases on our docket is lower now than it has been in all but two of the last twenty-five years. 2 Case filings peaked at 1,874 in 1988, 3 the first full year after I joined the court. The number then declined consistently to a low of 1,128 in 2009, rebounding to 1,176 in Focusing upon petitions for review of a decision made by an administrative agency, as opposed to an appeal from a judgment of the district court, the peak was again in 1988, when 960 such cases were filed. 5 That number, too, fell steadily to an eventual low of 277 in 2009, and then rebounded to 372 in Therefore, the share of our docket devoted to review of administrative agency decisions has shrunk from fifty-two percent at its high point in 1987 to a low of twenty-seven percent in 2009 and thirty-two percent last year. The peculiarity is that significant administrative cases nationwide have fallen to such an extent since 1986 that the percentage heard in the D.C. Circuit is now actually greater than ever. In order to make a meaningful comparison between the D.C. Circuit and the other federal courts of appeals, I exclude as not significant cases coming from the Board of Immigration Appeals and the Social Security Administration; those cases, which make up a large portion of the 1. All statistics, except where noted, come from the Administrative Office of the United States Courts ( AO ). Many are published in its annual publication, FEDERAL JUDICIAL CASELOAD STATISTICS (available in print form at the Law Library of Congress), or are available on the AO s website, others were graciously supplied by Pragati Patrick of the AO s Statistics Division. A single agency decision may give rise to a number of petitions for review, which are ordinarily consolidated by the court for consideration as a single case. 2. See FEDERAL JUDICIAL CASELOAD STATISTICS, supra note See id. 4. See id. 5. See id. 6. See id.

3 2012] REMARKS UPON RECEIVING LIFETIME ACHIEVEMENT AWARD 3 Figure 1 Overall Case Filings and Administrative Case Filings in the D.C. Circuit administrative docket in other circuits but are no part of the D.C. Circuit s caseload, are considerably less complex than most administrative cases of the types commonly filed in the D.C. Circuit. Nationwide, in 1988 there were 2,899 cases arising from decisions of administrative agencies (other than the aforementioned two) filed in the courts of appeals. 7 As in the D.C. Circuit, the number then declined, reaching a low of 1,052 in 2009 and 1,062 in This decline was much sharper than the decline in D.C., with the result that petitions for review of administrative decisions filed in the D.C. Circuit have increased from twenty-eight percent of the national total in 1986 to a high of thirty-eight percent in 2007 and thirty-six percent in Although the percentage has bounced around somewhat, there is a clear upward trend, as the chart below shows. In consequence, the D.C. Circuit has become a relatively specialized court in the area of administrative law. Perhaps an explanation for our increasing market share lies in the rate at which the D.C. Circuit has reversed the decisions of administrative agencies and 7. See id. 8. See id. 9. See id.

4 4 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 10:1 Figure 2 Petitions Filed for Review of Administrative Decision (Excluding BIA and SSA) hence attracted challenges to agency decisions. Since the Supreme Court in Chevron v. NRDC 10 called for greater judicial deference to an agency s interpretation of the statutes it administers, the D.C. Circuit has remained more likely than the other circuits to reverse an agency decision. Before Chevron, we reversed in a lower percentage of agency cases than did the other circuits. 11 The trend since Chevron has been for an ever-increasing reversal rate in the D.C. Circuit even as the national reversal rate has declined. To wit, the reversal rate in D.C. from 1980 through 1985 was 14.22% but has been 22.93% in the years since; 12 the national reversal rate from 1980 through 1985 was 19.22%, but has been only slightly above 15% since then. 13 A party filing a petition for review of an agency decision usually may choose between the D.C. Circuit and at least one other circuit; other things being equal, it is likely to choose the forum it believes offers a greater probability of reversing the agency U.S. 837 (1984). 11. See FEDERAL JUDICIAL CASELOAD STATISTICS, supra note See id. 13. See id.

5 2012] REMARKS UPON RECEIVING LIFETIME ACHIEVEMENT AWARD 5 Figure 3 Reversal Percentage in Agency Cases (Excluding BIA and SSA) II. EN BANC REHEARINGS I have written two articles about the court s en banc practice; together they cover the period from 1981 to In my view, the infrequency with which our court convenes en banc to rehear a panel decision is both a cause and an effect of institutional health and harmony. There were fifty-five cases heard en banc in the decade of the 1980s 15 and only thirty-three in the following decade. 16 Better still, we have reheard en banc only eleven cases in the last ten years. 17 For the court to rehear a matter en banc after a three-judge panel has heard it is an extremely costly exercise. Because of the added complexity of coordinating an opinion that satisfies the majority of a larger number of judges and almost certainly dealing with a dissent, I have estimated one en banc rehearing consumes resources that could otherwise go to panels of three hearing five or six cases. 18 Worse yet, experience has shown rehearing a case en banc is often a totally unproductive exercise. Of the fifty-five cases we reheard en banc in the 1980s, five nearly ten percent became moot before the en banc court issued 14. See Douglas H. Ginsburg & Donald Falk, The Court En Banc: , 59 GEO. WASH. L. REV (1991); Douglas H. Ginsburg & Brian M. Boynton, The Court En Banc: , 70GEO. WASH.L.REV. 259 (2002). 15. Ginsburg & Falk, supra note 14, at Ginsburg & Boynton, supra note 14, at This figure comes from a Westlaw search. The decades are defined by reference to years beginning July 1st. 18. Ginsburg & Falk, supra note 14, at

6 6 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 10:1 Figure 4 D.C. Circuit En Banc Rehearings an opinion. 19 There was another group of six also around ten percent in which no clear majority emerged from the en banc court. 20 Thus, in twenty percent of the en banc cases, the court had nothing or nearly nothing to show for its efforts. In another seven cases (13.5%), the court en banc reached the same result as the panel. 21 I think the declining number of en banc rehearings over the last thirty years, and their paucity in the last decade, reflect a significant and increasing degree of mutual trust among colleagues. To have so few en banc rehearings, the judges must have either an extraordinarily homogenous view of the law or a great deal of respect for each other s judgments. Clearly, the latter is primarily what induces our reluctance to second-guess a panel of three colleagues; indeed, the court has reheard a case decided by a unanimous panel probably less than five times in the last twenty-five years. In sum, we have learned over time about the significant resource costs and the often modest benefits of rehearings en banc and, even more important, the collegiality of the court has grown over that time. I am aware of two important instances in which the court heard a case en banc from the outset, that is, without its first having been heard by a panel of three judges. The first involved the Watergate tapes cases, which were argued when I was clerking for Judge McGowan; 22 the second was the Microsoft case in There were judges who thought that we should hear the Microsoft 19. Id. at Id. at Id. at Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974); Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973). 23. United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).

7 2012] REMARKS UPON RECEIVING LIFETIME ACHIEVEMENT AWARD 7 case en banc from the outset because it was an extremely important case. I did not doubt the case was unusually important, but I agreed it should be heard initially en banc solely for a different reason: under the rules then in effect, a panel s decision could not have been reheard en banc. At the time, a majority of the active judges, not a majority of those voting, was required for rehearing en banc. 24 Therefore, a judge who was recused, because of a financial interest or otherwise, counted as a vote against rehearing. There were only seven judges who were not recused, and six votes were required to provide a majority for rehearing en banc; therefore, if the panel was divided, the full court could not revisit its decision without the agreement of one of the judges in the panel majority. As much as I am disinclined to rehear a panel decision en banc, I am even more averse to delegating to a panel virtual immunity from en banc review. III. OPINIONS AND DISSENTS Last year, panels of the D.C. Circuit disposed of 873 cases, 191 of them with published opinions, but our nine active and four senior judges (equivalent to a total of about eleven full time judges) issued a total of only nineteen dissenting opinions. 25 In other words, there was only one dissent for every forty-six dispositions. More significant, there was one dissent for every ten published opinions; that is, 92% of our published opinions were unanimous. 26 These are very healthy ratios. The propensity to dissent is not, however, uniform among us. I cannot make a fully accurate count, but I estimate the average number of dissents in a year is about two and a quarter per active judge. 27 My own average is a little less than one per year, 28 not, I believe, because I am lazier than all my colleagues or even more readily persuaded by any two who disagree with me. Rather, I think as do most or all of my colleagues to varying degrees we have an obligation to avoid a disagreement if we can do so in a principled way, whether it is by sequencing the issues so as to avoid a divisive question, or by narrowing the scope of the opinion, or simply by putting aside minor disagreements that are not material to the law of the Circuit. 24. Compare FED. R. APP. P. 35, 28 U.S.C.A. (2001) (amended 2005) ( A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. ) with FED. R.APP. P. 35 ( A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. ) (emphasis added). 25. The statistics in this paragraph were provided by the Office of the Clerk, D.C. Circuit. 26. See id. 27. The estimate is based upon statistics kept by the Clerk s office for the term through the term. During that period, 375 dissents were issued, an average of 23.4 per year. To capture the number of dissents per active judge per year, I divided this number by 10.5, which I estimate is the average number of active judges plus full-time equivalent senior judges over the years I have been on the court. 28. This number is based upon a Westlaw search.

8 8 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 10:1 Figure 5 D.C. Circuit Opinions and Dissents To be sure, views on dissents vary a good deal among judges as a whole. I remember as a first-year law student at the University of Chicago hearing Norval Morris, who was teaching criminal law, say that Lord Mansfield, during his many years as Chief Justice of the King s Bench, did not allow dissents. 29 A chief judge does not have that luxury here and now, but it remains true, as Professor Morris observed, that a dissent is often nothing more than an advisement that the author could not persuade even one of his colleagues to his position. In 1925, Walter Stager, an Illinois State s Attorney, described a dissent as entertaining but as useless as sassing the umpire of a baseball game. 30 Similarly, Justice Holmes in 1904 wrote, I think it useless and undesirable, as a rule, to express dissent. 31 That was, by the way, in a dissenting opinion and, of course, he went on to be known as the Great Dissenter. Apparently, his learning curve was the inverse of mine. Justice Brennan wrote about dissents that soar with passion and ring with rhetoric. These are the dissents that, at their best, straddle the worlds of literature and law. 32 I think that is a straddle that we ought not attempt too often, lest we find ourselves subject to the criticism Truman Capote leveled 29. See also M. Todd Henderson, From Seriatim to Consensus and Back Again: A Theory of Dissent, 2007 SUP. CT. REV. 283, (2007); John V. Orth, The Mystery of the Rule in Shelley s Case, 7 GREEN BAG 45, 47 n.16 (2003). 30. Walter Stager, Dissenting Opinions Their Purpose and Results, 19ILL. L.REV. 604, 607 (1925). 31. N. Sec. Co. v. United States, 193 U.S. 197, 364 (1904) (Holmes, J., dissenting). 32. William J. Brennan, In Defense of Dissents,37HASTINGS L.J. 427, 431 (1986).

9 2012] REMARKS UPON RECEIVING LIFETIME ACHIEVEMENT AWARD 9 Figure 6 D.C. Circuit Dissents, by Judge more than once at the work of Jack Kerouac: It is not writing. It is only typing. 33 Our literary efforts are not our strongest suit, but I admit it is liberating to write only for oneself and not for the sages, let alone the ages. When I was new on the court, my colleague, Larry Silberman who proves, by the way, both life and service can go on after receiving a lifetime service award told me, tongue in cheek, of course, Remember, the only people who read these opinions are the winning lawyer, the losing lawyer, and the winning lawyer s mother. I am nonetheless concerned that the winning lawyer s mother may appreciate Strunk and White, and so I do take some care with my opinions, albeit short of striving to straddle literature and law. IV. LENGTH OF OPINIONS Over the last half-century, the average length of our opinions expanded greatly at first and then contracted some. The big increase came in the 1970s and 1980s. 34 Some of the difference in the average may be explained by the federal courts loss of local jurisdiction to the D.C. court system in the early 1970s; 35 our opinions in D.C.-law cases were typically succinct. Surely, however, most of the increase had to do with the emergence in the early- to mid-1970s of extended, in my view overextended, opinions in administrative law cases. 33. LAWRENCE GROBEL,CONVERSATIONS WITH CAPOTE 32 (Da Capo Press 2000). 34. See Peter H. Schuck & E. Donald Elliott, To the Chevron Station: An Empirical Study of Federal Administrative Law, 1990 DUKE L.J. 984, (1990). 35. See History of the Federal Judiciary: Federal Courts of the District of Columbia, FEDERAL JUDICIAL CENTER, (last visited Nov. 13, 2011).

10 10 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 10:1 Figure 7 Length of D.C. Circuit Opinions The likely record holders were Judge Leventhal and Judge Robinson, the latter of whom tended to write a heavily footnoted treatise on the subject of the case at hand, whatever it happened to be. EPA cases, in particular, elicited extraordinarily long essays by Judge Leventhal, who seemed to think he could master the technology and science underlying the agency s decision and went about reviewing those decisions with an enthusiasm unbefitting a court. In the mid-1980s, when I was the Administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget, I addressed the Administrative Law section of the American Association of Law Schools, which was meeting in Washington. When I referred to the arrogant and intrusive D.C. Circuit, there was an audible gasp among the professoriate gathered there, whose importance as scholars had grown along with the self-importance of the Circuit. As it happens, things were already starting to change. Judges Bork, Scalia, Starr, and Buckley had recently joined the court; by the end of that decade, the D.C. Circuit was neither arrogant nor intrusive. And so it was that opinions began to recede from their inflated length. To be more specific, the average opinion increased in length by 177% from the 1950s to the 1960s, and another 278% from the 1960s to the 1970s; it remained at that

11 2012] REMARKS UPON RECEIVING LIFETIME ACHIEVEMENT AWARD 11 Figure 8 Number of U.S. App. D.C. Volumes level in the 1980s, before dropping 58% by the mid-1990s. 36 If we look at the number of volumes in the D.C. Circuit reporter that the court filled every year, we see something similar going on. A look at the number of footnotes in our FCC opinions, to take but one example, tells a similar story; they peaked in the 1970s and declined significantly in the 1990s and since. 37 The decline is to the court s credit. I recall a parody of academic writing in which footnotes express disagreement and ultimately disdain for each other. That is what tends to happen when two judges write footnotes in the same case. My former colleague, Abner Mikva, also wrote a very amusing article, which I commend to you, entitled Goodbye to Footnotes. 38 I will not spoil the ending because it is quite clever, but along the way he observes: When reading a footnoted opinion one s eyes are constantly moving from text to footnotes and back again. The distraction and time waste are substantial. If footnotes were a rational form of communication, Darwinian selection would have resulted in the eyes being set vertically rather than on an inefficient horizontal plane These are estimates calculated by selecting the first volume of U.S. App. D.C. labeled or , etc., and dividing the number of pages in the volume by the number of opinions therein. 37. These figures come from Westlaw. 38. Abner Mikva, Goodbye to Footnotes,56U.COLO.L.REV. 647 (1985). 39. Id. at 648.

12 12 THE GEORGETOWN JOURNAL OF LAW &PUBLIC POLICY [Vol. 10:1 Figure 9 Average Number of Footnotes per Page in FCC Cases He also notes how obiter dicta footnotes extend opinions. For whatever reason, the D.C. Circuit s production of footnotes plunged after Abner s article appeared. CONCLUSION Looking back over these last twenty-five years, from a statistical point of view several things are apparent. The D.C. Circuit has fewer administrative law cases and yet a larger share than ever of all the administrative law cases in the federal courts of appeals. 40 The number of rehearings en banc in the Circuit has decreased dramatically over time, and we now have very few; 41 we also have few dissenting opinions, 42 and shorter opinions with far fewer footnotes than in decades past. 43 Consistent with these developments, the level of collegiality has increased steadily over the years and continues to be a robust and pleasant feature of service on the court. These trends have been facilitated no doubt by all the judges being together in one place. Our circuit is distinctive in having only one district, with all the circuit judges and all the district judges in one building. The Chief Justice, when he was still on our court, jested that [t]his allows the circuit judges the unique opportunity of sitting down to lunch right next to a judge who, moments before, 40. See supra notes 5 9 and accompanying text. 41. See supra notes and accompanying text. 42. See supra notes and accompanying text. 43. See supra notes

13 2012] REMARKS UPON RECEIVING LIFETIME ACHIEVEMENT AWARD 13 they had announced was guilty of abuse of discretion or clear error, which can make for a very short lunch. 44 Although technology now has liberated us from working only at that location and not all of us have our principal residences in Washington, our being together as much as we are is still an advantage no other circuit enjoys to the same degree. In sum, the D.C. Circuit is an exemplary institution; it functions extremely well. There may be a similarly able, hard working, and mutually respectful group of judges in other circuits, with which I am not as familiar, but I have every confidence in my colleagues. Indeed, if I had the misfortune to be a litigant, there is no one I would rather have judge my appeal than any three members of the D.C. Circuit. It has been a great privilege to work with them. I have served with twenty-four other judges over the years, including some extraordinarily good writers, of whom I think Jim Buckley was the best. I have also served with judges who have been more insightful or practical or experienced than I, and I have learned something from each of them. Some of my colleagues were previously trial judges and bring to the appellate bench insights I could never have had. Others were practicing lawyers, both trial and appellate, general counsels, legislators, academics, and senior government officials. The diversity in our backgrounds has been a strength for the court that I hope will be renewed by every president with the opportunity to nominate my future colleagues. Perhaps twenty-five years is enough after all to mark a lifetime of service. Still, I recall what Justice Marshall, for whom I clerked, said to anyone who asked when he would leave the Court: I have a lifetime appointment and I intend to serve it. 45 I have an even better deal because of the opportunity, as a senior judge, to carry on without carrying a full caseload, and that is just what I intend to do. And so I thank you very much for your recognition of my service so far, that is. 44. John G. Roberts, Jr., What Makes the D.C. Circuit Different? A Historical View, 92 VA. L. REV. 375, 376 (2006). 45. John Fox, Biographies of the Robes: Thurgood Marshall, rights/robes_marshall.html (last visited Nov. 13, 2011).